PESTONJI FRAMJI MISTRI Vs. FRAMJI BEJANJI BILLIMORIA

JUDGEMENT

(1.) When this case came on for trial the first question raised was whether the defendant was entitled to lay before the Court evidence of facts alleged to have been in the testator's mind, and, therefore, necessary to be known to the Court before it could truly apply the language used by the testator in the second clause of the will. This was, of course, strenuously opposed by Mr. Jinnah for the plaintiff, who, like most counsel of experience, is always most insistent on a legal technicality most ingenious, and I may say persuasive, in proportion as he feels that if this ground fails him his case is lost. Nevertheless, after giving the matter my most anxious consideration during the whole of his argument and the exhaustive and able reply to it by Mr. Kanga, I am still unable to free my mind from the logical compulsion of the technicality upon which Mr. Jinnah has taken his stand.

(2.) In this country the construction of wills must be governed, I think, by the terms of Section 62, and, for our particular purpose, Section 164 of the Indian Succession Act. Section 164 appears to be advisedly worded so as to narrow the field of inquiry to which large extensions had been given in England. Did that section stand alone, then the argument would have given rise to little difficulty. But the defendant has invoked the assistance of Section 62 in his endeavour to escape the narrow limitations imposed by Section 164. And the concluding words of Section 62 might, no doubt, be thought to give effect to something like the general principle upon which the English Courts have rarely hesitated to act. I own I find it for myself very hard to dissociate those words from the words with which the section opens. Those words, I think, must govern all that follows. So read, the section empowers Courts to avail themselves of extrinsic evidence "for the purpose of determining questions as to what person or what property is denoted by any words used in a will", etc. Now, in the present case, it seems to me that it is only by an undue straining of language that it can fairly be said that any question arises as to determining either the person or property denoted in the disputed clause. Ingenuity might suggest that there really is some uncertainty about the property arising in this way, that if Rs. 1,500 given to the plaintiff were meant to be given in discharge of a debt and not in addition thereto, then without the assistance of extrinsic evidence the Court reading the words of the will simply as they stand might dispose of Rs. 3,000 instead of Rs. 1,500 of the testator's money. So that to that extent--the difference between Rs. 1,500 and Rs. 3,000-- there is really an uncertainty about the property denoted in the disputed clause, to resolve which the section allows the Court to go into extrinsic evidence of all facts which might enable it to apply the testator's language more correctly to the facts which were within his knowledge. That seems to me the only possible line of reasoning by which the defendant might hope to escape the rigidity of Section 164, as well as the distinctions insisted upon by some of the very greatest English Judges in dealing with cases of somewhat similar difficulty. Clause 2 of the will runs in the following terms: "My trustees shall give to my brother, Pestonji Framji Mistry, Rs. 1500 namely fifteen hundred without interest and they shall get him to vacate the place in my house which he now occupies ". On the face of them, these words are quite clear and unambiguous both as to the property and the person and if we turn to the authorities upon which the learned Counsel have relied, notwithstanding the great Judges, who were responsible for the decisions in Charter V/s. Charter,(1874) L.R. 7 H.L. 364. and Harrison V/s. Higson, [1894] 1 Ch. 561. affirming the well-known doctrine that where there is an ambiguity in the language used by the testator the Judge is entitled by the use of extrinsic evidence to put himself in the testator's shoes or seat himself in the testator's chair, I cannot see any way of distinguishing the facts with which I am at present confronted from those which were incompromisingly dealt with by such high authorities as Lord Halsbury L. C., Lord Davey and Rigby L.J. in Higgins V/s. Dawson W. In the other cases there can be no question that very great Judges- one of the very greatest indeed Earl Cairns-inclined somewhat liberally to the view that where there might be any form of ambiguity in the language the Courts might seek illumination from extrinsic evidence throwing any light upon the surrounding facts which then by inference would be used as pointing to the testator's intention. In the last case, however, a sharp line is drawn between the propriety- even the legality- of taking one step in the direction of investigating intention. Their lordships unanimously insisted, in language which is too plain to be mistaken or misunderstood, that where a testator has left no uncertainty as to the person to be benefited and the property by which the benefit is to be conferred, then the Courts are precluded from going outside the actual words used by the testator, and the effect of that principle seems to have been given by the language of Section 164 of the Indian Succession Act. There it is laid down: "Where a debtor bequeaths a legacy to his creditor, and it does not appear from the will that the legacy is meant as a satisfaction of the debt," etc. Plainly the important words are "and it does not appear from the will," words which confine the scope of the Court's interpretation in the first instance to the language of the will and that alone.

(3.) In the present instance, Clause 2 of the will is certainly worded in an unusual way and therefrom suspicions or conjectures might well arise as to the testator's intention.